The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A). Indeed, just a few of hours ago, Elie Mystal at Above the Law went there. The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.” Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.” And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government. Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt. See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it. But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass. As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative. Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result. In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence. Who gets to keep his or her guns? What guns remain protected? Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts. But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

As I continue to toil away on some outside writing projects (you’ll find out about them soon…), give a read to this Washington Post op/ed by David Lat and Kashmir Hill of Above the Law.

Entitled, “Justice Clarence Thomas seems bored. Why doesn’t he run for president in 2012?”, Lat and Hill go on to make an argument that should make any Court watcher and student of law and politics wonder, “Why haven’t I thought of this before?” That is no slight – this article is refreshingly provocative and plausible. There’s no better kind of commentary. Here’s a sample:

The Republican Party is in disarray, with no clear message — as shown in last week’s primaries — and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP’s new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography “My Grandfather’s Son.” And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.

No matter what one thinks of Justice Thomas, I think there’s a little something for everyone in Lat and Hill’s proposal.

Like this:

Over at Above the Law, David Lat makes the case for Diane Wood as the natural pick for the next justice. In doing so, he echoes my thoughts as expressed on F1@1F’s first day of existence in late December, as well as in severalotherpieces I’ve posted since.

Lat’s piece, however, amplifies my thoughts tenfold with his own expertise, personal experience, and colorful commentary. Give it a read.

Last week, I gave you all the information you need to be at the head of the line. But getting there is only the start of the full experience. After the jump, I give you some tips to maximize your morning.

But Justice Scalia, only hours before, killed his credibility when he openly embraced “substantive due process,” the living constitutionalists’ darling device for abortion- and gay-rights, rather than face the liberal consequences of an originalist reading of a resurrected Privileges or Immunities Clause of the Fourteenth Amendment.

That sealed it. If Scalia could imperil his legacy for the sake of convenient results, then so could I.

Read the rest at Above the Law. Part II will be up over there next week.

Like this:

Georgetown 3L Mike Sacks had a mission this semester. He wanted to be first in line for every major argument at the Supreme Court. He’s been documenting his adventures on his blog First One @ One First.

This is made easier for him because he has no morning classes and lives on Capitol Hill, a few minutes away from the High Court. He should also have camping experience from his undergrad days at Duke, but unlike me, he somehow avoided spending time in Krzyzewskiville.

Maybe if he had paid his dues tenting out for basketball games, he would have succeeded in his mission. But no. Some Californians derailed him this week, as documented by the New York Times.